Cody's Law Read online

  CODY'S LAW

  by

  Fin J Ross

  BLURB

  The brutal bashings of a five-year-old Cody Hutchings by his step-father promoted a major change in state legislation in Australia.

  After Stuart John McMaster was found guilty manslaughter, the Victorian State Government introduced the new offence of child homicide.

  CODY'S LAW

  Cody Hutchings 'crime' was that he didn't respond quickly enough to whatever was asked of him by his de facto stepfather. This was hardly surprising though, since Cody suffered from a congenital condition which results in delayed development, impaired motor skills and irritable behaviour. And besides, Cody was only five years old.

  Cody Hutchings 'sentence' was ... death.

  Stuart John McMaster's crime was brutalising this defenceless little boy for several weeks inflicting so many injuries that his tiny body could no longer endure. He died a slow, painful and torturous death. Stuart was a grown man, a drug addict, a strict disciplinarian and a sadist.

  Stuart McMaster's sentence was ... 12 years, 6 months, with a minimum of 10 years.

  Despite having admitted to police that he had struck Cody up to 25 times on the day he died and innumerable times in the weeks before, Stuart McMaster pleaded 'not guilty' to murder in June, 2007. The jury was unable to agree on a guilty verdict at that trial and so McMaster was able to cop a plea for manslaughter, to which he pleaded guilty. His sentencing upon conviction for manslaughter, on August 14, 2007, prompted outrage among the Victorian public and prompted the state Premier, John Brumby (in only his third week in office) to announce the creation of new child homicide legislation.

  The evidence given at McMaster's original trial, later summed up by Justice David Harper at his sentencing hearing, painted a picture of a brutal man whose uncontrollable temper was unleashed not only on young Cody but also on his de facto wife, Belinda, whenever she tried to intervene to defend her son. His only defence was his use of both illicit and prescribed drugs. And his only remorse was the fact that his repeated atrocities were discovered only because his victim ultimately died.

  Justice Harper highlighted the fact, however, that McMaster had not been charged with assault for any of the beatings inflicted before the day of Cody's death. He appeared for sentencing only on one count of manslaughter and one count of intentionally causing injury, relating to an assault on Belinda, of which the jury at his earlier trial had already found him guilty. At the time of McMaster's sentencing, the maximum penalty for manslaughter in Victoria was 20 years imprisonment.

  Speaking to the count of manslaughter, Justice Harper said ... 'the act by which the crime was constituted was not only a conscious and voluntary act on your part, but was also one that was unlawful and dangerous; dangerous, that is, in the sense that a reasonable person in your position must have realised that Cody was thereby exposed to an appreciable risk of serious injury.

  'It is also relevant to note the context in which the fatal assault occurred. It was one of a series of physical attacks on Cody that were systematic and serious. Some of them were brutal. You have not been charged with these other assaults, and I therefore cannot and do not impose any punishment for them. On the other hand, in this case the context necessarily affects my response to submissions that you are remorseful.

  'The context is also important for another reason. I am required by law to take into account the nature and gravity of the offence. Just as any sentence must reflect the fact, if it be the fact, that the offence was an isolated and aberrant act, out of character with the typical behaviour of the offender, so must a sentence reflect the fact, if it be the fact, that the offence for which it is imposed was one of a series of acts of cruelty inflicted upon a young and defenceless child, who, as a result, is now dead.'

  Cody Hutchings, his younger brother Christian, and their mother Belinda McMaster (who co-incidentally shared Stuart's surname although they weren't married or related) first came to share their home with Stuart McMaster in June 2005, when Cody was four and a half years old. For the first nine months or so, the four lived a 'relatively normal' family life. Early on, McMaster claimed to have been as happy as he had ever been and he enjoyed positive interaction with Belinda and her two young boys.

  As Justice Harper said to Stuart McMaster ... 'You were affectionate towards them all. You joined the boys in their play, and accompanied the family on outings. You exchanged presents. Christmas 2005 was spent happily together, with Belinda's mother joining you.'

  He went on to say that it was significant that during this period...'you were a consumer of both illicit and prescribed drugs. If one drug was not available, you took another. You put this fact forward as at least a partial explanation for what you concede is totally unacceptable conduct'.

  According to a report prepared by consultant forensic psychologist, Elizabeth Warren, McMaster started drinking alcohol and using cannabis at the age or 12 or 13 and then three or four years later turned to heroin. Eighteen months before moving in with Belinda, he decided to cease using heroin and was prescribed Buprenorphine to help him do so. However his rejection of heroin was largely cancelled out when he began using amphetamine. The report stated that 'amphetamine...can be combined with Buprenorphine without the advserse effects that occur when Buprenorphine and heroin are used together'.

  Justice Harper told the court: 'The combination nevertheless had its own adverse effects. Drugs induced in you occasional feelings of paranoia and, more especially, an inability to control your anger. This inability, it was submitted on your behalf, included an inability to understand the degree of the force of the assaults you had, by the time the family moved to Hoppers Crossing in or about December 2005, begun to inflict on the young child in your charge. So, although you may have yourself suffered some adverse consequences of your continued involvement with drugs, it was Cody, not you, who was the true victim of them'.

  He went on to give a chilling account of the injuries sustained by Cody in the series of brutal attacks inflicted by McMaster, using his hands and feet and a leather belt he had modified into a strap.

  'In the weeks, perhaps as many as eight, before Cody's death, your relationship with him became progressively more dysfunctional. He was not an easy child to manage. He suffered from Williams Syndrome. This is a genetic condition that results in delayed development and associated behavioural difficulties, impaired motor skills, poor sleeping and irritable behaviour. Nevertheless, it was not these aspects of Cody's personality that caused your difficulties with him.

  'The source of the problem seems to be more complicated. Ms Warren describes the strangely unfortunate connection between your affection for Cody and your view that, because you demonstrated this affection for him, he should have reciprocated by reacting quickly to whatever you asked of him. According to the evidence, his failure to respond with the speed that you thought appropriate was a significant trigger of your outbursts of anger. And while Williams Syndrome may have played a part in any tardiness in Cody's responses, your expectations of a five-year-old child were in any event totally unrealistic and inappropriate.

  'Your failure to appreciate the realities of childhood gave rise, it seems to me, to another reason for your conduct towards Cody. As you told the police, if his behaviour irritated Belinda, she would yell. Your solution to this problem was to slap the boy, or even strike him with a belt modified for use as an instrument of punishment. To this extent you assumed on her behalf the role of disciplinarian. As Ms Warren records in her report, you became the 'strap man' and 'there was not sufficient internal or external censure of (your) actions to change the situation.' The report also records that Cody's pleas: 'Don't call the strap man, Dad' were not sufficient to deter the brutality of your behaviour in circumstances in w
hich the boy's mother approved some aspects of your methods of discipline, while for your part you were not prepared to exercise self-control.

  'For reasons that have not been fully explained, your outbursts became more and more frequent during the last weeks of Cody's life. It was submitted on your behalf that they were spontaneous and therefore unpremeditated. Perhaps that is true of some of them. But you not only anticipated a continuation of your role as disciplinarian, but prepared for it by modifying a belt to become a heavy strap for the corporal punishment of a very young and defenceless boy. I am satisfied beyond reasonable doubt that over the final fortnight you repeatedly, and increasingly often, unlawfully assaulted Cody by slapping him to the head, trunk and limbs with your hand and with the modified leather belt. You sometimes expressed remorse after an assault. Far from any remorse modifying your treatment of Cody, however, it became progressively more reprehensible. To the extent that you experienced any remorse during Cody's lifetime, therefore, that remorse was transient and ineffectual. It cannot now be taken into account in your favour.

  'In the last days of Cody's life, your behaviour towards him moved from being cruel to something even worse. You did not punch or kick him, but the back-handed and open handed blows you inflicted on him were savage both in force and frequency. The same must be said of the use of the strap.'

  'The post-mortem examination revealed approximately 160 bruises on Cody's body. They were visible on his head, his neck, his chest, his abdomen, both arms and both legs, his penis and his buttocks. In addition, he had a large gash to his forehead, a tear to the tissue that connects the inside of the upper lip to the gum and two fractures of the skull. Associated with one of these was extensive haemorrhaging around the back left area of the head. One of the fractures was, in the pathologist's opinion, fresh.'

  The court heard that about two weeks before he died, Cody failed to obey an order from McMaster to sit down and stop fidgeting; a minor misdemeanour for which McMaster slapped him on the chest and in the stomach, leaving red marks. Cody then got up and stumbled, hitting his head on the archway of a door. On the afternoon of his death, Cody was struck by McMaster and then fell and hit his head on the toilet bowl causing the gash noted at his post mortem examination. After that, and because he failed to sit still on the sofa, McMaster hit him hard in the stomach and chest area and then sent him to his room. Cody once again stumbled and hit his head on a wall.

  Justice Harper said the pathologist did not believe either of Cody's skull fractures was caused by the incident in the toilet and it was possible that neither fracture was sustained by Cody's head hitting the wall or archway that day. He acknowledged that the fractures may have been caused by different falls and therefore did not hold McMaster responsible for either fracture.

  While Cody's post-mortem examination detailed dozens of injuries it was the fact that McMaster had kicked him in the stomach and then possibly stepped on him while he lay helpless and undoubtedly in agony on the floor, that was thought to have ultimately caused the fatal injury, although not necessarily on the day he died.

  'Cody died from the application to his abdomen of force consistent with an adult's foot being thrust into his stomach region. You did this to him. You did it not once, but twice. You told the police that when Cody was sitting down you pushed him in the stomach with your bare foot with the result that he was forced into a lying position of the ground. The thrust you generated in this way was, you said, harder than you thought; and you did what you did although you had seen bruises on him at different times beforehand. You knew that you had caused at least some of those bruises. Unbeknown to you, the first incident when you used your foot on Cody was probably the act which resulted in his death some time later,' Justice Harper said.

  The pathology report on Cody noted an extensive area of haemorrhage involving the entire mesenteric structure and including 350 millilitres of blood. The blood had been present for sufficient time to allow it to change colour from red to dark brown or black, and to allow to develop the septicaemia and peritonitis from which Cody probably died. This indicated that the trauma that caused the fatal bleeding occurred some time before the day of death. The source of the blood was a shearing tear to the mesenteric root. Two areas of the liver were also torn. All these structures are deep seated, and the pathologist stated that the degree of force necessary to damage them must have been 'quite severe'.

  'I am, on the basis of the nature of the relevant internal injuries, satisfied beyond reasonable doubt that you subjected Cody either to a very hard push, or allowed at least some of your weight to be placed on his stomach as he lay on the ground, so that you partially stood on him,' Justice Harper said.

  He said that whether McMaster pushed Cody with his foot or partially stood on him, the action indicated a degree of contempt for the child and a total disregard for the humiliation such an action would cause. He said McMaster frequently increased the element of humiliation inherent in each of his assaults by his choice of the body part he targeted. He said that while a blow to the buttocks may generate pain, it did not generally carry the element of humiliation that accompanied being struck across the face...' Yet you frequently subjected both Cody and his mother to just such humiliation'.

  Although the pathology on Cody revealed that he was already suffering from abdominal injuries which would prove to be fatal, McMaster inflicted more injury to the child's already painful stomach on the day he died.

  Justice Harper summed up Cody's final tragic hours of March 25, 2006.

  'The day began badly. You had gone to bed the night before with a sore arm. It seems that this was the result of your inappropriate use of Buprenorphine, which you injected into your arm instead of using in accordance with the prescribed method. Ms McMaster bumped your arm during the night. This hurt. It made you angry, and you left the bed to sleep on the couch. Next morning, you argued with Ms McMaster about it. Sometime later, because Cody had failed to answer you when you spoke to him, you sent him to the laundry, which served as the 'naughty room'. You then decided that this punishment was insufficient. You followed Cody into the laundry. During the following minutes you slapped him very hard to the face, chest and stomach with your hand, and to the buttocks and legs using the belt that you had modified for the purpose. When you returned to the lounge, Ms McMaster suggested that you should get help to manage your anger. At this, you slapped her hard in the face and on the back and side of the head and spat on her, while being equally aggressive verbally. When she raised her arms in self-defence, you struck her side with the palm of your hand.

  'For a time during the early afternoon, you were alone with Cody and Christian while Ms McMaster went shopping. It was during this period that Cody gashed his forehead on the toilet bowl. When Belinda returned, she told you that the beltings had to stop. Your response was to hit her three or four times hard in the face with your open hand. She was in pain, and terrified, as a result. You then broke down and said you were sorry.

  'Your anger did not subside for long. Belinda allowed Cody to lie on the sofa. But he was restless. You gave him three or four hard back-handed slaps to the stomach and chest before sending him to his bedroom. It was then that he stumbled into the wall and again hit his head. Although it ought to have been plain that all was far from well with him, you struck him again after he reached the bedroom, simply because he would not or could not keep still. This behaviour was sadistic. Altogether, you hit Cody between 20 and 25 times on that last day of his life in attacks that were savagely cruel. When Cody's mother suggested that he be taken to the doctor, you disagreed, saying that if the boy's bruises were seen by a medical practitioner, both Cody and Christian might be removed from her custody. In taking this position when it was clear that Cody required medical attention, you put your own interests above his, while admitting that he had been the victim of serious ill-treatment.'

  Belinda had told McMaster's original trial that a few hours after she suggested taking Cody to the doctor, he died at the
dinner table.

  'I looked down and his eyes had gone into the back of his head. I realised he had lock jawed and he wasn't breathing. I picked him up and took him to the shower to try to get him to come to.'

  Belinda was evidently aware of McMaster's repeated assaults on Cody for the two months leading up to his death, but did not, or could not do anything about it. Belinda had also suffered from McMaster's uncontrolled aggression. A medical examination of Belinda, soon after Cody's death, showed her to be battered and bruised. She had bruises to her right forehead, her left cheekbone, her right cheek and under her right eye, her left wrist, her upper left arm and elbow, her back above her right hip and both legs.

  Justice Harper said the assault on Belinda, which was the foundation of the charge of intentionally causing injury must be seen in the context of her attempt to intervene on Cody's behalf, and in the context that it was one of a number of violent physical attacks on her involving 'viciously humiliating behaviour'.

  In determining McMaster's sentence, Justice Harper took into account his 'considerable number of prior convictions', none of which involved violence, and decided not to increase his sentence by reference to those convictions. He also took into account McMaster's plea of guilty to manslaughter, which, he said, spared the community the cost and inconvenience of another trial.

  'The fact of the plea of guilty, coupled with other indications, satisfy me that, in contrast to your empty expressions of sorrow during Cody's life, you are now remorseful. According to Ms Warren, whose report I accept, you are now preoccupied with recollections of the fear you saw in Cody's eyes.'

  Justice Harper told McMaster that since he was intelligent and now drug free, and provided he continued to abstain from drugs and employed his intelligence and commonsense, his prospects of rehabilitation were 'at least reasonable'. He said that having taken these factors into account, the sentence he was imposing was shorter than it would otherwise be.